Free Uncategorized - District Court of Arizona - Arizona

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Quarles & Brady Streich Lang LLP
Firm State Bar No. 00443100 Renaissance One Two North Central Avenue Phoenix, AZ 85004-2391
TELEPHONE 602.229.5200

Lonnie J. Williams, Jr. (#005966) [email protected] Dawn C. Valdivia (#020715) [email protected]

Attorneys for Plaintiff Marcela Johnson IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Marcela Johnson, Plaintiff, v. Charles Schwab Corporation, Defendant. NO. CV 04-0790 PHX-EHC MOTION TO COMPEL PRODUCTION OF DOCUMENTS WITHHELD ON THE BASIS OF PRIVILEGE

Plaintiff Marcela Johnson ("Johnson") moves to compel Defendant Charles Schwab Corporation ("Schwab") to produce documents withheld on the basis of privilege because Schwab has waived the privilege by failing and refusing to produce a privilege log. This Motion is accompanied by the following Memorandum Points and Authorities and the accompanying Statement of Consultation by Dawn C. Valdivia. MEMORANDUM OF POINTS AND AUTHORITIES On September 8, 2005, Johnson issued first sets of Requests for Production ("RFP) of documents and Non-Uniform Interrogatories ("NUI") to Schwab. On October 28, 2006, Schwab responded to the discovery requests. At the beginning of the RFP and the NUI, Schwab inserted a general objection based on privilege. Schwab also specifically objected to NUI Nos. 2-7 and 10 and to RFP Nos. 5-8, 12, 14-17, and 23 on the basis of privilege. Schwab additionally withheld documents pursuant to RFP Nos. 1, 4, 13, 24 because of privilege. See Statement of Consultation of Dawn C. Valdivia ("Valdivia Statement") ¶¶ 1-4, filed herewith. On November 11, 2005, Johnson's counsel, Mrs. Valdivia, requested a privilege log

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from Schwab. None was produced. On November 28, 2005, Mrs. Valdivia followed-up on her request. Again, no log was produced. On December 7, 2005, the parties engaged in a meet and confer during which Mrs. Valdivia again asked for privilege log. Regardless of these requests, Schwab has refused to produce a privilege log. See Valdivia Statement ¶¶ 5-9. On January 17, 2006, Johnson served a second set of RFP and NUI on Schwab. On February 21, 2006, Schwab responded to the second set of RFP and NUI asserting a general objection based on privilege. Schwab did not produce a privilege log. See id. at ¶¶ 10-13. Rule 26(b)(5) requires parties who withhold information based on privilege to describe the nature of information being withheld. Specifically, the Rule provides: when a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection. Fed. R. Civ. P. 26(b)(5); see also Advisory comment to 26(b)(5)1993. Schwab has failed to meet its obligation under Rule 26(b)(5) by failing to provide Johnson with a privilege log (or similar document). Schwab has also refused to provide such a log despite requests by Johnson's counsel. Schwab's failure and refusal to provide a privilege log constitutes waiver of the privilege. In Burlington Northern, the Ninth Circuit upheld the district court's ruling that Burlington waived the privilege by failing to timely provide a privilege log by providing it five months after the responses to the to the requests for production were due. Burlington Northern & Santa Fe Railway Co. v. U.S. Dist. Ct. Montana, 408 F.3d 1142 (9th Cir. May 19, 2005), cert. denied 126 S.Ct. 428 (October 11, 2005). The Court stated that "in the absence of mitigating considerations, this fact alone would immunize the district court's
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ruling from reversal..." Id. at 1149. The Court also held that boilerplate objections inserted into a response to a Rule 34 request for production of documents is insufficient to assert a privilege. Id. The Ninth Circuit instructed the district court, when determining whether a privilege log has been timely provided, to use the 30-day period from Rule 34 as a default guideline and make a case-by-case determination, taking into account the following factors: (1) the degree to which the objection or assertion of privilege enables the litigant seeking discovery and the court to evaluate whether each of the withheld documents is privileged (where providing particulars typically contained in a privilege log is presumptively sufficient and boilerplate objections are presumptively insufficient); (2) the timeliness of the objection and accompanying information about the withheld documents (where service within 30 days, as a default guideline, is sufficient); (3) the magnitude of the document production; and (4) other particular circumstances of the litigation that make responding to discovery unusually easy or unusually hard. Id. Here, Schwab asserted boilerplate objections in response to all of Johnson's discovery requests and failed to provide a privilege log at the time it served its discovery responses. Schwab then refused to provide such a log even after asked by Johnson's counsel. Indeed, it has been over six months since Schwab served its initial responses to Johnson's discovery requests and no privilege log has been produced. Schwab has

withheld an untold number of documents based on privilege, but has failed and refused to produce any information about the withheld documents. Consequently, Schwab has

waived any claim to privilege that it has asserted and should be compelled to produce the withheld documents. For the foregoing reasons, Johnson respectfully requests this Court to compel Schwab to produce all the documents that were withheld on the basis of privilege in response to Plaintiff's First and Second Request for Production and Non-Uniform Interrogatories.

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RESPECTFULLY SUBMITTED this 7th day of June, 2006. QUARLES & BRADY STREICH LANG LLP By s/Dawn C. Valdivia Lonnie J. Williams, Jr. Dawn C. Valdivia Attorneys for Plaintiff Marcela Johnson

I hereby certify that on June 7, 2006, I electronically transmitted the attached document to the Clerk's office using the CM/ECF System for filing and transmittal of Notice of Electronic Filing to the following CM/ECF registrants: Joseph T. Clees Karen Gillen Nonnie Shivers Ogletree, Deakins, Nash, Smoak & Stewart, P.C. A copy of this document was provided to The Honorable Earl H. Carroll s/Dawn C. Valdivia
QBPHX\115637.00002\2018144.1

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